Marriage equality means equality in every sense. Divorce laws apply the same to all marriages. In an LGBTQ+ divorce, you could be dealing with issues, such as child custody, equitable distribution of property and potentially alimony. You should not underestimate the intensity of the legal process and the potential for a mistake that can set you back in the long run.
A Hendersonville divorce attorney at Davis Curry Law can represent you in an LGBTQ+ divorce, providing you with legal services in a tenacious, yet humane way.
Legal Issues in an LGBTQ+ Divorce
The legal issues involved in same-sex divorces are often the same as those in a heterosexual divorce. Here is an overview of some of the major areas of contention in a same-sex divorce:
- Property division: North Carolina uses principles of equitable distribution to divide marital assets. Equitable does not always mean equal. The court will look at various factors to decide how to allocate marital property and debts
- Custody issues: The couple may have conceived or adopted a child. Each parent may want custody of the child or the maximum possible visitation time. In addition, the court may order one parent to pay child support to another
- Alimony issues: One spouse may be ordered to pay alimony to the other, either temporarily or permanently. Alimony can help one spouse when they are gaining the skills to earn more money or when there is a wide disparity in the standards of living between the two spouses
There Are Some Unique Legal Issues in an LGBTQ+ Divorce
One unique issue involved in same-sex divorces is that a couple may have been together far longer than they have been legally married. Same-sex marriage was not legally recognized in North Carolina until 2014.
However, couples who were together before that time may have jointly titled property (such as when they bought a home together). Thus, there may be challenges when dividing property if you were involved in a long relationship before same-sex couples were given the right to marry.
One of the factors in equitable distribution is the length of the marriage. A divorcing couple cannot use the date of the beginning of their relationship as the date for purposes of equitable distribution.
Instead, it would be the date of their legal marriage, so the length of the union would be shorter. The same principle would apply to any cohabitating couple, since North Carolina does not recognize common law marriages.
Then, another challenge would be dividing the property that the couple had purchased together before they were legally married. This property would have to be divided, but not using the same equitable distribution factors used for marital property. The challenge would be separating the non-marital property from the marital property.
Child Custody in an LGBTQ+ Divorce
Child custody is another common issue. One key factor is whether the couple had the legal ability to be married at the time that they had the child. If they did not, the court would look at the role that the other spouse played, both before and after the birth to determine whether they were consistent with a parental relationship. If the answer is yes, then that parent may be able to also seek custody in a divorce.
If the couple adopted or had the child together (and both parents had legal custody of the child), there is no presumption about who would get custody of the child. If one spouse in the same-sex couple was inseminated, and carried the child, there would be no presumptions if they were married when they had the child.
North Carolina courts would determine the best interests of the child in reaching their decision. However, if one parent had legal custody of the child during the marriage, the other parent would likely not be able to get custody in the divorce. The parent without physical custody may be responsible for paying child support to the other parent.
How An LGBTQ+ Divorce Attorney Can Help You
Here is how our experienced North Carolina same-sex divorce lawyer can help you:
- We can listen to you and learn what is important to you in the divorce process
- We identify issues that may arise during the divorce that you need to consider
- We review your legal options and help you formulate a strategy for the divorce
- We can negotiate with the other spouse on your behalf (through their attorney)
- If you cannot reach a divorce agreement, we can litigate the case in court
In many ways, divorce is more about looking ahead than it is about looking back. You need to prepare for the future, making your legal and financial decisions even more crucial. Sitting down with an attorney can help you focus and prepare yourself for the process.
Same-Sex Divorce FAQs
What are the legal requirements for a same-sex divorce?
The couple must have been separated for at least one year, and one spouse must have been a North Carolina resident for at least six months.
What is the rate of married same-sex couples ending in divorce?
LGBTQ+ marriages have a similar divorce rate to heterosexual unions. 15% of same-sex marriages between men end in divorce, while the rate of divorce in these marriages among women is 30% (much higher than the national average).
Contact a Hendersonville, NC LGBTQ+ Divorce Attorney Today
If you want to get out of a same-sex marriage, there is no reason why you should try to go through the divorce process on your own. You are already dealing with enough in life, and do not need the stress of the divorce details. The team at Davis Curry Law takes care of the legal process, working with you to help you make the best possible decisions.
Given the potential complexity of your case, you should get legal help. You can reach out to us today at 828-900-2420 or reach out to us online to schedule an appointment.
